Filed 8/3/16 P. v. Phim CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

VIRET PHIM,

Defendant and Appellant.

F069104

(Super. Ct. No. 25626)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Valli K. 

Israels, Judge.

Michael Satris, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, R. Todd Marshall and A. Kay Lauterbach, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOooINTRODUCTION

In 1994, appellant Viret Phim, a 17-year-old gang member from Stockton, shot 

and killed two of his own confederates while they were participating in the robbery of a 

14-year-old girl outside a market in Modesto. 
2.

Appellant was subsequently convicted of two counts of first degree murder, with 

robbery and multiple-murder special circumstances, under a theory of felony murder, as 

well as other offenses. The trial court sentenced him to two terms of life without the 

possibility of parole (LWOP) for the murders, staying the second LWOP term. This 

court affirmed appellant’s convictions in 1997. (People v. Phim (Nov. 20, 1997, 

F025275) [nonpub. opn.].) 

On April 8, 2013, appellant filed a petition for writ of habeas corpus in which he 

claimed he was entitled to resentencing on both statutory grounds pursuant to Penal 

Code1section 1170, subdivision (d)(2) (hereafter § 1170(d)(2)), and on federal 

constitutional grounds pursuant to Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 

2455] (Miller). 

On June 14, 2013, the trial court issued written orders denying, without prejudice, 

appellant’s petition for writ of habeas corpus with respect to his Miller-based 

constitutional claims, and setting the matter for hearing solely as a petition for recall and 

resentencing pursuant to section 1170(d)(2). 

After a hearing on February 28, 2014, the trial court denied the petition for recall 

and resentencing, essentially concluding that, although appellant had made commendable 

progress in his postconviction rehabilitation efforts in prison, he had not demonstrated 

sufficient progress to justify resentencing under the factors enumerated in section 

1170(d)(2). 

On appeal, appellant contends the trial court abused its discretion in determining 

that he was not entitled to resentencing under section 1170(d)(2). Among other things, he 

argues that the court abused its discretion by failing to consider the juvenile LWOP 

sentencing considerations established by Miller (the so-called “Miller factors”). 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
3.

Based on the unique circumstances of this case, we conclude that the order 

appealed from should be reversed and the matter remanded for the trial court to 

reconsider appellant’s original petition for writ of habeas corpus in its entirety, including 

appellant’s constitutional claims, in light of the authorities discussed, infra. 

DISCUSSION

Governing Law

In Miller, the United States Supreme Court held that statutes requiring courts to 

sentence juvenile homicide offenders to LWOP violated the Eighth Amendment ban on 

cruel and unusual punishments. (Miller, supra, 567 U.S. at pp. ___, ___ [132 S.Ct. at 

pp. 2469, 2475].) The high court explained that its other recent precedents concerning 

juvenile sentencing, Roper v. Simmons (2005) 543 U.S. 551 and Graham v. Florida

(2010) 560 U.S. 48, along with its “individualized sentencing decisions[,] make clear that 

a judge or jury must have the opportunity to consider mitigating circumstances before 

imposing the harshest possible penalty for juveniles.” (Miller, supra, 567 U.S. at p. ___ 

[132 S.Ct. at p. 2475].) In other words, “a sentencer misses too much if he treats every 

child as an adult.” (Id. at p. ___ [132 S.Ct. at p. 2468].) 

The Court accordingly set forth five considerations—the above mentioned “Miller

factors”—that sentencing courts need to evaluate before sentencing a juvenile homicide 

offender to LWOP: (1) “his chronological age and its hallmark features—among them, 

immaturity, impetuosity, and failure to appreciate risks and consequences”; (2) “the 

family and home environment that surrounds him—and from which he cannot usually 

extricate himself—no matter how brutal or dysfunctional”; (3) “the circumstances of the 

homicide offense, including the extent of his participation in the conduct and the way 

familial and peer pressures may have affected him”; (4) “that he might have been charged 

and convicted of a lesser offense if not for incompetencies associated with youth—for 

example, his inability to deal with police officers or prosecutors (including on a plea 
4.

agreement) or his incapacity to assist his own attorneys”; and (5) “the possibility of 

rehabilitation.” (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468].)

The Miller Court made clear that it was not foreclosing “a sentencer’s ability” to 

conclude that LWOP was an appropriate sentence for a particular juvenile homicide 

offender. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2469].) Instead, it explicitly 

stated that its ruling “mandates only that a sentencer follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing a 

particular penalty” (id. at p. ___ [132 S.Ct. at p. 2471]), such that sentencing courts going 

forward were obligated “to take into account how children are different, and how those 

differences counsel against irrevocably sentencing them to a lifetime in prison” before 

imposing LWOP sentences (id. at p. ___ [132 S.Ct. at p. 2469]).

In Montgomery v. Louisiana (2016) ___U.S. ___ [136 S.Ct. 718, 736], the Court 

held that Miller applies retroactively to offenders like appellant, whose LWOP sentences 

became final before Miller was decided.

The pertinent statute governing sentencing of juvenile offenders remains 

section 190.5. Subdivision (b) of that statute provides that “[t]he penalty for a defendant 

found guilty of murder in the first degree, in any case in which one or more special 

circumstances enumerated in Section 190.2 or 190.25 has been found to be true under 

Section 190.4, who was 16 years of age or older and under the age of 18 years at the time 

of the commission of the crime, shall be confinement in the state prison for life without 

the possibility of parole or, at the discretion of the court, 25 years to life.” 

In People v. Gutierrez (2014) 58 Cal.4th 1354, 1388–1389 (Gutierrez), which, as 

noted by the trial court, was pending review at the time of the hearing on appellant’s 

resentencing petition, the California Supreme Court applied Miller to disapprove People 

v. Guinn (1994) 28 Cal.App.4th 1130 [33 Cal.Rptr.2d 791] (Guinn), which had held that 

section 190.5, subdivision (b) created a presumption in favor of LWOP for those 
5.

sentenced under its provisions. In Gutierrez, our high court summarized its holding and 

disposition as follows:

“[W]e hold that section 190.5[, subdivision] (b), properly construed, 

confers discretion on a trial court to sentence a 16- or 17-year-old juvenile 

convicted of special circumstance murder to life without parole or to 

25 years to life, with no presumption in favor of life without parole. We 

further hold that Miller requires a trial court, in exercising its sentencing 

discretion, to consider the ‘distinctive attributes of youth’ and how those 

attributes ‘diminish the penological justifications for imposing the harshest 

sentences on juvenile offenders’ before imposing life without parole on a 

juvenile offender. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2465].) 

Because the sentencing regime created by section 190.5[, subdivision] (b)

authorizes and indeed requires consideration of the distinctive attributes of 

youth highlighted in Miller, we find no constitutional infirmity with 

section 190.5[, subdivision] (b) once it is understood not to impose a 

presumption in favor of life without parole.

“Because the two defendants here were sentenced before Miller in 

accordance with the interpretation of section 190.5[, subdivision] (b)

prevailing at the time (see Guinn, supra, 28 Cal.App.4th at p. 1142), we 

remand for resentencing in light of the principles set forth in Miller and this 

opinion.” (Gutierrez, supra, 58 Cal.4th at pp. 1360–1361.)

The court thus interpreted Miller as requiring a court “to admit and consider relevant 

evidence of” the five Miller factors. (Gutierrez, at p. 1388.)

Although a court must consider the Miller factors and all relevant evidence 

pertinent to them prior to sentencing a juvenile offender to LWOP or declining to 

resentence him or her to a determinate sentence, “[n]o particular factor, relevant to the 

decision whether to impose LWOP on a juvenile who has committed murder, 

predominates under the law.” (People v. Palafox (2014) 231 Cal.App.4th 68, 73.) 

“Hence, as long as a trial court gives due consideration to an offender’s youth and 

attendant characteristics, ... it may, in exercising its discretion under Penal Code 

section 190.5, subdivision (b), give such weight to the relevant factors as it reasonably 

determines is appropriate under all the circumstances of the case.” (Ibid.)
6.

Analysis

Here, it is undisputed that the trial court did not consider the Miller factors in 

determining whether appellant was entitled to recall of his LWOP sentence and 

resentencing under section 1170 (d)(2). The attorney general argues the court’s failure to 

consider the Miller factors does not demonstrate an abuse of discretion because the court 

was only “obliged to consider the factors set forth in the statute” and notes “[y]outh [was]

not one of those factors.” 

It is true that prior to the hearing on appellant’s petition in February 2014, the trial 

court limited the scope of the hearing to the question of whether appellant was entitled to 

resentencing under the factors enumerated in section 1170(d)(2), by denying, without 

prejudice, appellant’s habeas petition with respect to his Miller-based constitutional 

challenges to his LWOP sentence. However, it appears the court’s reason for so limiting 

the scope of the hearing was erroneous. 

The trial court’s June 2013 written order reflects that the reason the court declined 

to reach appellant’s constitutional claims was because it mistakenly believed that 

appellant had already raised “unsuccessfully on appeal” the contention that his LWOP 

sentence under section 190.5, subdivision (b), “constitutes cruel and unusual punishment 

under the Eighth Amendment because he was a minor at the time he committed the 

offense.” However, our 1997 opinion upholding the judgment of conviction reflects that, 

although appellant claimed his sentence constituted cruel and unusual punishment under 

the state Constitution, he did not challenge his LWOP sentence under the Eighth 

Amendment of the federal Constitution. 

The trial court’s reason for declining to reach appellant’s constitutional claims on 

the merits thus appears to have been mistaken and there was no reason for the court to 

limit the scope of the hearing to the question of statutory relief as it did. In light of this 

and the number of decisions concerning the LWOP sentencing of juveniles rendered by 

the United States and California Supreme Courts since the court heard appellant’s 
7.

petition, including while this case has been pending on appeal, we believe the most 

appropriate remedy is to remand the matter for the court to hold a new hearing to 

reconsider, in its entirety, appellant’s original petition for writ of habeas corpus in light of 

the authorities discussed above and any other pertinent decisions that may have been 

rendered by the time the court reconsiders appellant’s petition.

DISPOSITION

The order appealed from is reversed and the matter is remanded to the trial court with 

directions to reconsider appellant’s original April 8, 2013, petition for writ of habeas 

corpus in its entirety in light of the views expressed and authorities discussed in this 

opinion.

_____________________

HILL, P.J.

WE CONCUR:

_____________________

GOMES, J.

_____________________

KANE, J.